Sunday, August 28, 2016

On interpreting meaning from Nueces DA ouster and the limitations of reform via prosecutor elections

The vanquishing of Nueces County DA Mark Skurka by a defense lawyer with "Not Guilty" tattooed across his chest was one of the prime examples offered up in a new academic article by Stanford's David Alan Sklansky titled, "The changing landscape for elected prosecutors." According to the article, Mark Gonzales was one of several prosecutors who have recently "won office by promising, in part, to reduce prosecutorial misconduct, excessive punishment, or overly aggressive, racially disproportionate police tactics." He "campaigned against overly aggressive prosecutions" and for "greater transparency." Here are the specific references to the Nueces County race:
In February 2016 [sic], the incumbent District Attorney in Nueces County, Texas, Mark Skurka, lost his primary race to Mark Gonzales, a defense attorney who lacked prosecutorial experience and had “not guilty” tattooed across his chest; Gonzales had promised greater transparency and a crackdown on prosecutorial misconduct.
Here's a bit more detail:
In March 2016, in what local media called “a huge upset,” the well-known District Attorney of Nueces County, Texas, career prosecutor Mark Skurka, was turned out of office in the Democratic Primary. Skurka lost to Mark Gonzalez, a longtime criminal defense attorney with no prosecutorial experience with “not guilty” tattooed across his chest. During the campaign, Gonzalez embraced his identity as a hard-charging defense attorney. The principal issues on which he ran were prosecutorial misconduct and, in particular, the improper withholding of exculpatory evidence. He emphasized a string of cases in which convictions obtained in Nueces County had been overturned on appeal and the prosecutors had been accused of misconduct. Every prosecutor, Gonzales said, should have “not guilty” tattooed “on their heart,” because until convicted at trial, “everyone accused of a crime is not guilty.”
In a preview of the Nueces DA race, Grits earlier noted that Skurka was "the hometown DA for the Democratic Chairman of the Texas House Criminal Jurisprudence Committee and the Republican Chairman of the House Calendars Committee, giving him out-sized political influence for a Democratic office holder." A significant scandal just weeks before the election probably helped seal the incumbent's fate. At 56-44, the race was pretty much a stomping.

None of this means Gonzales will be a shoo-in. He faces a Republican candidate and in 2012 Nueces County went for Romney. His best hope will be if Donald Trump inspires significant numbers of Republican voters to stay home. And even if he is elected, what meaning can one derive from it? You can argue Democratic primary voters were making a statement, but if Gonzales loses in the general along partisan lines, would that be a pro or anti-reform statement? Neither, really. It just means partisanship outweighs nearly every issue in the minds of general election voters, which is hardly news.

While attempting to rebut arguments that prosecutor elections are poor vehicles for reformist aspirations, Sklansky does recognize the "limitations" on elections' ability to hold DAs accountable:
Perhaps the most serious [limitation] is that voters generally are poorly positioned to assess the performance of an elected prosecutor. Prosecutors do much of their most important work not in open court but behind closed doors: that is they consult with police officers, make charging decisions, determine what evidence needs to be disclosed, and hammer out plea deals. And prosecutors’ offices tend to be secretive and opaque, far more so than even most police departments. So the public often lacks basic information about how a district attorney’s office is operating. Moreover, it isn’t even clear what information the public should want or should care most about; there is remarkably little consensus about what distinguishes good prosecutors’ offices from bad ones. It isn’t just that people disagree; most of us have, within ourselves, conflicting expectations for prosecutors. We want them to be zealous advocates and dispassionate ministers of justice; champions of justice and instruments of mercy; creatures of the law and exercisers of discretion.  All of this —the lack of transparency, the disagreements and conflicting expectations about how prosecutors should do their jobs— makes it difficult to assess the ultimate significance of ... any of the election results we’ve been discussing.
Real prosecutorial reform must extend beyond elections to the statehouse and the judiciary. But when the opportunity arises for voters to make a statement, it's encouraging to find that increasingly more and more are willing to do so.

18 comments:

Anonymous said...

Exactly, just ask Craig Watkins!

Gadfly said...

Anon: Craig Watkins dug his own hole after he was elected. The use of "slush" money for vehicular needs, plus the partisanship in the Hunt-connected case, are only two examples.

Gritsforbreakfast said...

The other difference: Watkins was elected unexpectedly as part of an abrupt partisan shift in countywide outcomes, not because he ran on a reform platform. Slightly different circumstance, though he was influential once in office (Conviction Integrity Units, etc.).

Skifool said...

Craig Watkins was severely ethically challenged--sending staff to contact defense attorneys asking for money to fund the DA Christmas party comes to mind.

Skifool said...


People seem to forget or fail to acknowledge that Watkins' predecessor Bill Hill was also doing conviction integrity work on innocence claims.

Gritsforbreakfast said...

Skifool, that's because you're overstating things. Hill refused DNA testing for a bunch of folks who were freed once Watkins assented to it. Hill was not doing "conviction integrity work." He was dealing with the fallout from provable actual innocence claims, but in a reactionary way, merely responding when claims were filed. Until Watkins, nobody at the Dallas DA was actively looking for innocence cases. Rather, they were doing all they could to keep from having to acknowledge them.

Anonymous said...

At the end of the day, people in Texas expect prosecutors to do one thing well: prosecute criminals. It's the job of defense attorneys to advocate for the accused; and the job of the judge to make sure the proceedings are fair and everyone follows the law.

Gritsforbreakfast said...

If that's all that was expected of DAs, 5:32, then Chuck Rosenthal and Bill Hill would still be in office, and Mark Skurka wouldn't be a lame duck.

Educated White Woman with CJ experience said...

Anon 05:32....

You are so woefully uninformed. Clearly, you nor anyone in your family has faced criminal prosecution. Or, perhaps they did, but you have the bucks for a high priced attorney who actually had your interests at heart.

However, when those of us who cannot afford, or do not have such privilege are prosecuted, I can guarantee you that literally anything can be twisted enough by the prosecution to cast a shadow on the defendant. There is nothing left to do but plead guilty. Judges lean in favor of the prosecutor and court appointed attorneys are paid by the county. And those appointed attorneys get paid a set amount per client, so their incentive is to do as little work as possible.

Why else do we have about a 95-96% rate of conviction via plea?

There is no justice, at least not in Texas, unless you are privileged, rich, and white.

DLW said...

Educated White Woman with CJ experience, are you aware that Court Appointed Lawyers get paid MORE if their client pleads not guilty and either takes the case to trial or pleads out at the 11th hour?

Anonymous said...

Even the new elected DAs keep doing dumb stuff. For example, http://www.star-telegram.com/news/local/community/fort-worth/article94019497.html (Jury clears Fort Worth man cop kicked and then arrested for interfering)

Anonymous said...

I am sick of the self serving DA's, most are incompetent serving the people. Prosecutors consider the accused as guilty until proven innocent, they fail to produce evidence and just talk their way through an uninformed Jury (a Jury that does not know their rights). Many people in prison are innocent, lied to by their attorney's for benefits. Prosecutors threaten the accused defendant because they know that the jury is swayed by the court (a lot are hand picked or work at the courthouse). I personally know of 4 prosecutors that work this way and 3 Defense Attorneys that were told that if they did not go along with this behavior there would be no work for them in that Court.I am sure that there is many more but I do not want anything but the facts of this Northern Texas County noted here.

Anonymous said...

Bell County has a horrible DA. Can't wait to see him leave. Been told by several officer/deputy friends that they (officers) work the criminal cases meeting the statutory elements of the crime and even many times well beyond that point; only to have criminal cases refused by the Bell County DA's office. Victims had to see no prosecution or institutionalized ineffectiveness.

Skifool said...

Henry Garza, a native Texas, is a graduate of Killeen High School. Henry received his Bachelor of Arts degree from Austin College in 1978 and, after being awarded his Doctor of Jurisprudence degree from Texas Tech University, was licensed to practice law in Texas in 1981. Henry worked in the Bell County Attorney's office and prosecuted misdemeanors from 1983 until 1986. He then worked as an Assistant District Attorney for Bell County for fourteen years. Henry was elected to the honor of serving as District Attorney for Bell County, Texas and took office January 1, 2001, and is currently serving his fourth term.

Henry is Past President and current Chairman of the Board for the National District Attorney Association. The NDAA is the "Voice of America's Prosecutors" and provides a vehicle for prosecutors throughout America to influence issues that impact criminal justice concerns nationally.

Henry is also a member of the Board of Directors for the Texas District Attorneys Association (TDCAA). He serves as the District Attorney At-Large. The TDCAA serves as the training area for Texas Prosecutors, and facilitates effective changes in Texas criminal justice issues.

In 2012, Henry received the Killeen Independent School District Distinguished Alumni Award.

In 2008, the Bell County Bar Association awarded Henry the honor of being chosen as the Public Sector Lawyer of the year for his efforts and service as District Attorney.

In 2001, Henry was named by the Texas District and County Attorney's Association as the winner of the C. Chris Marshall Award. This award is given to the most distinguished faculty member and teacher of the year. Henry was honored for his training and speaking to Texas prosecutors across the state.

Anonymous said...

Henry Garza needs to go.

Anonymous said...

I know a 50yr. old man in the Harris cty jail that is accused of a crime that we know he did not commit, but because he committed a crime 25 years ago he can't even get a bail amount for less than half million dollars. When there is a trial he can be proven not guilty so in the mean time he can't work or do anything but sit there and wait. This is not justice.

kold_kadavr_ flatliner said...

Juss B glad they dont cut-yur-head-off with a chainsaw, dear... as Isis does or the Mexican drug lords do. Precisely why we must elect the Don. Im counting on YOU, girl. God bless you!!

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